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Jake Melnick's Corner Tap in Chicago has created hot wings with sauce so hot that it requires its customers to sign a waiver prior to eating them. This story has generated a significant amount of national press. If you recall, I posted last month about the Eagle Hotel in Linglestown, PA doing the exact same thing. Although one assumes this is largely a publicity stunt (and a good one), would the waiver be upheld if someone sued a restaurant after signing one of these waivers?

The express assumption of risk/waiver analysis generally consists of two parts. First, is the language clear? Second, even if the language is clear, does the waiver offend public policy? Assuming the language is clear, one of the most significant factors in the public policy analysis is whether the good or service being provided is a necessity. That would depend on the level of abstraction at which the question is answered. Food is a necessity. On the other hand, hot wings are a bar food. At this, arguably more proper level of abstraction, hot wings are hardly a necessity (my colleague, Mike Dimino, being from Buffalo, may differ with me on this point!). Contrast a hot wings waiver with, say, a public hospital waiver, and the necessity factor is extremely clear. Given the importance of the necessity factor in the analysis, it seems to me these waivers should be upheld in the unlikely event they are challenged in court.